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en-usTechdirt. Stories filed under "recording"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Thu, 18 Sep 2014 07:50:00 PDTOnly Surviving Recording Of The Very First Superbowl Is Because A Fan Recorded It, But You Can't See It, Because CopyrightMike Masnickhttps://www.techdirt.com/articles/20140917/06061528548/only-surviving-recording-very-first-superbowl-is-because-fan-recorded-it-you-cant-see-it-because-copyright.shtml
https://www.techdirt.com/articles/20140917/06061528548/only-surviving-recording-very-first-superbowl-is-because-fan-recorded-it-you-cant-see-it-because-copyright.shtmlculture being lost -- but also how unauthorized copies (the proverbial "damn dirty pirates") have at least saved a few such treasures from complete destruction. There was, for example, the "lost" ending to one of the movie versions of Little Shop of Horrors that was saved thanks to someone uploading it to YouTube. Over in the UK, a lost episode of Dad's Army was saved due to a private recording. However, Sherwin Siy points out that the very first Super Bowl -- Super Bowl I, as they put it -- was basically completely lost until a tape that a fan made showed up in someone's attic in 2005. Except, that footage still hasn't been made available, perhaps because of the NFL's standard "we own everything" policy. From Cracked:

It sounds crazy nowadays, but during the '60s, NBC and CBS, who broadcast Super Bowl I, essentially had no archiving policy for anything other than primetime shows, so neither one kept a copy of the historic game beyond a few random clips. And seeing as home video technology was still a few years away, the broadcast footage was considered lost forever until a mostly-complete recording turned up in a Pennsylvania attic in 2005, made by a fan at a video production company.

And we have to emphasize "mostly" here -- the copy is missing much of the third quarter, the entire halftime show, and several smaller bits. The Paley Center for Media tried reconstructing these parts using official sideline footage and fan-made audio recordings, but the last we heard about the project was way back in 2011, right around the time the NFL started claiming sole copyright ownership of the footage. Probably a coincidence.

Other reports explain in more detail that, indeed, the NFL stepped in to "protect" the work it had failed to originally protect:

The NFL has claimed ownership of the broadcast itself and while the Paley Center was allowed to keep a copy of the game, it cannot show it without permission from the owner of the videotapes, who reportedly would like to sell the tapes.

The original WSJ article about all of this details the NFL's claim to the man who found the tape, who has remained nameless.

Mr. Harwood, the attorney, says he contacted the NFL in 2005 about the tape. He says the league sent him a letter on Dec. 16, 2005 claiming the NFL was the exclusive owner of the copyright. Mr. Harwood says the NFL offered his client $30,000 for the tape and his client declined. Mr. Harwood said his client would like to sell the tapes and make them available to the public if the legal issues can be resolved.

So the NFL failed to save it. A fan did. And now no one can see it because the NFL is claiming copyright over the footage it failed to protect. Great to see copyright "protecting" culture once again, huh?

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]]>dirty-pirateshttps://www.techdirt.com/comment_rss.php?sid=20140917/06061528548Fri, 29 Aug 2014 04:42:07 PDTCounter-Strike Player's Twitch Stream Captures His Own SWATting... And Some Questionable Police BehaviorTim Cushinghttps://www.techdirt.com/articles/20140828/13313928352/counter-strike-players-twitch-stream-captures-his-own-swatting-some-questionable-police-behavior.shtml
https://www.techdirt.com/articles/20140828/13313928352/counter-strike-players-twitch-stream-captures-his-own-swatting-some-questionable-police-behavior.shtml
One of the more unfortunate side effects of police militarization isn't directly the fault of law enforcement agencies or their enablers at the Pentagon. But it is related. Thanks to the Drug War, nearly every town in the US has a SWAT team or one minutes away, whether they need one or not. This has led to the rise of SWATting -- calling in a false report in order to send a charged-up SWAT team to raid someone's home.

Jordan "Kootra" Mathewson, who streams his sessions on Twitch, was streaming from an office near a Littleton, CO school (which was put on lockdown) when the SWAT came "knocking."

What's interesting about this (beyond the lengths griefers will go to make someone miserable) is some of the actions caught on video.

At the beginning, the SWAT team does the usual cop thing of everyone yelling at the same time because that apparently works better than having a point person designated to deliver concise, well-enunciated instructions. (Note: it does work better than other situations where officers have yelled contradictory instructions over each other ["Stand up!! Lay on the ground!!].) Bonus points for swearing because no one takes guys with assault rifles and Kevlar vests seriously unless they use variations of the word "fuck."

About two minutes in, after Mathewson has been searched and cuffed (and held on the ground by SWAT boots, just in case), an officer asks where his phone is. He picks it up and casually starts looking through it. First off, the new rules say get a warrant, although I'd imagine an active shooter situation (even if fake) falls under exigent circumstances. But there doesn't seem to be any hesitation on the officer's part. He just asks where Mathewson's cell phone is… and then takes it. He continues looking through it for the next couple of minutes while asking questions occasionally.

Also of note: around the 4:30 mark, Mathewson explains to the cops that he's streaming. Once he explains that people are watching, the attention shifts from Mathewson to the camera -- which the cops then disable. They have no reason to and they certainly don't have the right to, but they just go ahead and do with a notable lack of hesitation. (The same cop who casually started looking through Mathewson's phone leads the way.)

As the camera is gracelessly dismounted, you can hear the other SWAT member ask: "If you heard us yelling, why didn't you move?" Mathewson answers that he had earphones on, but the better answer would have been, "Because I didn't want to get shot." I can think of no earthly reason why someone being raided by a SWAT team would make any movements that he or she hasn't been directed to make. At the point that Mathewson realizes what's happening, the SWAT team is still clearing rooms. Had he decided to make a surprise appearance in the hall, there's a good chance he would have-- at minimum -- been subjected to even rougher treatment. There's also a rather healthy (ha!) chance that someone might have fired off a round or two, given that these officers were looking for an active shooter and not, say, a serial parking law violator.

Mathewson has to walk them through the whole process of killing the stream (audio can still be heard for another minute or so), leaving the rest of the narrative to be captured in police reports. Fortunately, nothing went "wrong" in this raid, so no one was wounded or subjected to excessive amounts of force. It's also rather fortunate that Mathewson was using headphones, because one can only imagine what might have happened if the steady stream of Counter-Strike gunfire had been audible.

There have been several SWATings in recent months, but none of them have given us a look at one in progress. The SWAT team did nothing wrong by taking the threat seriously, although one officer's actions definitely approach the outer edges of what's acceptable/Constitutional and he did so with a practiced ease.

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]]>LOUD-NOISEShttps://www.techdirt.com/comment_rss.php?sid=20140828/13313928352Wed, 20 Aug 2014 08:02:31 PDTNYPD Settles Case In Which It Arrested Guy For Recording Stop And Frisk, Pays $125,000Mike Masnickhttps://www.techdirt.com/articles/20140819/17242728260/nypd-settles-case-which-it-arrested-guy-recording-stop-frisk-pays-125000.shtml
https://www.techdirt.com/articles/20140819/17242728260/nypd-settles-case-which-it-arrested-guy-recording-stop-frisk-pays-125000.shtmlSimon Glik case, it appears that the NYPD (under new management!) decided to do its best to settle the case and get it off the books. They're paying $125,000 to Dick George, who recorded police doing one of its infamous stop-and-frisks. According to George's lawsuit, not only did the police arrest George and delete the photos from his camera (after he told the kids who were stopped and frisked to get the cops' badge numbers next time), the police flat out knew what they were doing was illegal -- telling George to sue the police:

“Now we’re going to give you what you deserve for meddling in our business and when we finish with you, you can sue the city for $5 million and get rich, we don’t care,” Lt. Dennis Ferber said, according to the suit filed in Brooklyn Federal Court.

Not surprisingly, the new mayor and new police chief didn't want this case to go very far, and got George to agree to a $125,000 settlement. Will victories like this get police to stop these kinds of things? Doubtful, but it's still good to see.

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]]>finishing-all-the-city's-businesshttps://www.techdirt.com/comment_rss.php?sid=20140819/17242728260Thu, 19 Jun 2014 14:05:13 PDTWhy The FBI's New Interview Recording Policy Probably Won't Change AnythingTim Cushinghttps://www.techdirt.com/articles/20140609/10344327526/why-fbis-new-interview-recording-policy-probably-wont-change-anything.shtml
https://www.techdirt.com/articles/20140609/10344327526/why-fbis-new-interview-recording-policy-probably-wont-change-anything.shtml
As was noted here earlier, the FBI took a bold step in towards joining the 21st century by finally implementing audio and video recording hardware introduced in the 20th century. Up until this point, the FBI, along with the DEA and ICE, did not record in-custody interrogations using anything more up-to-date than pen-and-paper. This rendered recollections of interrogations completely suspect, prone to pen-wielder bias and the insertion and removal of context as needed, presumably in order to help secure more convictions for the FBI's entrapment counterterrorism task force.

And, as was also noted, the DOJ's new instructions provided plenty of escape hatches for agents who wished their interrogations to remain as analog as possible. Unrecorded interrogations can still be performed in the event that desirable recording equipment (i.e., a cellphone) isn't available or if the equipment available isn't functioning (batteries missing/unplugged/inadvertently smashed to pieces…).

First, there's the "public safety" exception, which can be triggered when exigent circumstances make unrecorded and (un-Mirandized) interrogations a necessity. These would be questionings normally done in the first few moments of an arrest. But with everyone carrying around a recording device, that exception no longer makes much sense. You no longer have to take a suspect "downtown" in order to record a questioning. The inclusion of this loophole is likely borrowed from pre-existing language, but all it does is create reasons not to record.

[S]ince recording is no longer impracticable, why wouldn't a responsible law enforcement agency want to preserve an unambiguous record? Unlike a public safety exception to Miranda, a public safety exception to recording seems to serve no purpose other than that of affording a loophole that can be exploited for illicit purposes.

The other loophole is much, much larger. It's predicated on the same rationale that has allowed the Constitution to be selectively scrapped over the past dozen years.

The same point applies with even greater force to the exceptions for “national security” and “intelligence, sources, or methods.” If recording is feasible (and that is the only condition in which the recording policy applies), national security and counterterrorism officials can only gain by having an unambiguous record of precisely what a suspect was asked and precisely how he or she answered. Indeed, an official who deliberately chose not to make and preserve a clear record of a national security interrogation would display less dedication than incompetence.

As Schulhofer points out, this exception plays right into the mindset of the FBI, which has refashioned itself into the nation's largest counterterrorism force (putting law enforcement on the back burner). This also plays right into every law enforcement and intelligence agency's fetishization of "intelligence, sources or methods." This is what's conjured up to justify refusals of FOIA requests and to keep new surveillance methods out of the public eye for as long as possible. It's what's used to deny access to returned warrants on closed cases. But for the FBI, it's also a reason to never record anything, just in case. The FBI's intertwined relationship with the NSA -- combined with the last year of leaked documents -- will make any agent extremely wary about leaving behind undisputed records of intelligence-related interviews. But all this will do is make these agencies even more insular and untrustworthy than they already are.

No national security establishment can possibly operate effectively on the basis of unwritten knowledge and word of mouth. If our government has reacted to the Snowden affair by developing an aversion to writing anything down, we are in deep trouble.

"Deep trouble" is where we're headed, if we're not there already. The DOJ has given the FBI, DEA and ICE huge exceptions to the recording policy -- which, it must be noted, aren't actually commands but a "presumptions" -- ones that are particularly prone to exploitation. Over the past decade, we've seen the government exploit the fear of "the next 9/11" to expand power and contract civil liberties. Government agents may now have to act under the "presumption" that custodial interviews will be recorded, but the DOJ has given them a handy list of excuses to use when these recordings fail to happen.

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]]>the-loophole-is-a-superhighwayhttps://www.techdirt.com/comment_rss.php?sid=20140609/10344327526Mon, 9 Jun 2014 05:28:00 PDTCourt Calls A Do Over In Terror Hearings After Failure To RecordMike Masnickhttps://www.techdirt.com/articles/20140606/15465427498/court-calls-do-over-terror-hearings-after-failure-to-record.shtml
https://www.techdirt.com/articles/20140606/15465427498/court-calls-do-over-terror-hearings-after-failure-to-record.shtmlfailed to record the public portion of oral arguments in an important terrorism case (against Adel Daoud), meaning that there was no official recording or transcript of the hearing (part of which was also held in secret). But now, the court has called for a rare "do over" on the public portion of the hearing.

A federal appeals court in Chicago has rescheduled oral arguments in a terrorism case after courtroom staff failed to record a significant hearing.

The U.S. 7th Circuit Court of Appeals issued a notice on Friday saying it would rehear arguments June 11 in the case against Adel Daoud, who's accused of trying to set off a bomb near a Chicago bar in 2012.

So, um, what? The original was a dress rehearsal? Do they get to make different arguments, or are they expected to basically repeat the script they did a week earlier? Will it play out like an awkward re-enactment? And, most importantly, will Judge Posner, once again yell "Look! You answer my questions, not your questions!" at the lawyers?

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]]>are-they-allowed-to-change-arguments?https://www.techdirt.com/comment_rss.php?sid=20140606/15465427498Fri, 6 Jun 2014 14:17:12 PDTCourtroom Staff, Freaked Out By FBI Agents, Failed To Record Important Terrorism Court HearingMike Masnickhttps://www.techdirt.com/articles/20140605/17363527489/courtroom-staff-freaked-out-fbi-agents-failed-to-record-important-terrorism-court-hearing.shtml
https://www.techdirt.com/articles/20140605/17363527489/courtroom-staff-freaked-out-fbi-agents-failed-to-record-important-terrorism-court-hearing.shtmlturned it into a secret hearing, kicking everyone but DOJ officials out of the courtroom at one point. One of the reporters in the room (prior to being kicked out), Michael Tarm, had tweeted that everyone should look for the recording of the oral arguments on Thursday "if only to hear Posner" yell: "Look! You answer my questions, not your questions!"

Except, if you looked, you would never find that recording. Because it doesn't exist. The court clerk, who's been doing this for 25 years, says his staffers "goofed" and failed to record the hearing at all, in large part because they were so spooked by FBI agents crawling all over the court room for hidden microphones.

Though hearings before the 7th U.S. Circuit Court of Appeals are routinely recorded and published on the court's website, Court Clerk Gino Agnello admitted Thursday his staff "sort of freaked out" before Wednesday's hearing in the case of alleged wannabe South Loop bar bomber Adel Daoud.

Court staff who operate the audio recorder saw FBI agents sweep the courtroom for bugs and "misinterpreted" that to mean they shouldn't record the hearing, Agnello said.

And, of course, because these hearings are normally recorded, there was no one there to do standard stenography. Instead, the transcript is often written up after the fact... based on the recording. Ooops. Except, you know, not "oops." This is a pretty big screw-up, considering the importance of our supposedly "open" judicial system. Daoud's lawyer, Thomas Durkin, properly points out that "this is what happens when people get scared," and shows how difficult it is to have a fair trial when so much is "driven by fear-mongering."

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]]>spookedhttps://www.techdirt.com/comment_rss.php?sid=20140605/17363527489Fri, 30 May 2014 13:54:48 PDTAppeals Court Reaffirms The Public Has The Right To Record The Police, Except For All The Times When It Doesn'tTim Cushinghttps://www.techdirt.com/articles/20140530/10054127413/appeals-court-reaffirms-public-has-right-to-record-police-except-all-times-when-it-doesnt.shtml
https://www.techdirt.com/articles/20140530/10054127413/appeals-court-reaffirms-public-has-right-to-record-police-except-all-times-when-it-doesnt.shtml
In what is being touted as a victory for First Amendment rights, the First Circuit Court of Appeals has upheld the right of people to record police officers in public. This is nothing more than a reaffirmation of a right citizens already possessed, something that can hardly be considered a victory.

The problem is that, despite this being made clear on multiple occasions, people are still being arrested for recording police officers. Sometimes it's a bad (and outdated) wiretapping law that gets abused. Sometimes it's other, unrelated laws that are stretched to fit the circumstances, which means those recording officers are hit with charges ranging from interfering with police investigations to criminal mischief, depending on how the interaction goes.

But this ruling has received lots of press, much of which centers on the positive aspects of the ruling -- which, again, must be pointed out only affirms a previously existing right. So, while it's nice to have a higher-level court confirm First Amendment protections, the fact is that this decision was only made necessary by law enforcement's arguments to the contrary.

[T]he opinion, after reaffirming what was already the law, put a lot more effort into the caveat:

"This is not to say, however, that an individual’s exercise of the right to film a traffic stop cannot be limited."

Boom. There it is, the grand right in a few black letters, and then the lengthy explanation detailing how to circumvent and eliminate it. Thanks for the roadmap, bro.

"Indeed, Glik [v. Cunniffe] remarked that 'a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged.' That observation reflected the Supreme Court’s acknowledgment in Fourth Amendment cases that traffic stops may be ‘especially fraught with danger to police officers’ and thus justify more invasive police action than would be permitted in other settings. Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them."

The word “reasonable” is perhaps the most dreaded word in law. First, it is meaningless, left to the sensibilities of judges to decide and a hole big enough to drive a Mack truck through. Second, whenever we see it, we know it’s the opening through which bad things come. Bad, bad things.

"Reasonable" is one of the government's favorite words, one that helps carve out privacy protections and pare back the First Amendment right to record cops. "Reasonable" is the amount of effort claimed to be made by an FOIA department as it turns down your public records request. "Reasonable" is the key word propelling the Terry stop, which in some cities has devolved into stop-and-frisk. "Reasonable" is supposedly an objective standard, but one that is constantly defined subjectively by everyone from the beat cop to the judge presiding over the case.

So, the word "reasonable" jumps in with the First Amendment right so recently confirmed and starts punching holes in the protection.

[A] police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

In plain English, this is what that means.

[Y]ou have the constitutional First Amendment right to record police until they tell you to stop, because reasons, at which point you don’t.

Now, we're back where we started, even with a recent district court decision. Citizens have a right that doesn't feel like a right because it can so easily be revoked by an officer reaching a "reasonable conclusion." This means recordings will still be shut down and those operating cameras arrested. The right, as it exists, will most likely be subject to our country's favorite remedy: the court system, a long, expensive process that usually begins with an arrest.

That's not how rights are supposed to work. The exceptions should be few and far between, rather than an incredibly significant part of the whole.

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]]>leaving-citizens-to-fight-'reasonable'-arrests-for-obstructionhttps://www.techdirt.com/comment_rss.php?sid=20140530/10054127413Tue, 27 May 2014 16:08:21 PDTFBI Joins The 20th Century, Will Begin Using Recording Equipment During Custodial InterviewsTim Cushinghttps://www.techdirt.com/articles/20140522/10264627328/fbi-joins-20th-century-will-begin-using-recording-equipment-during-custodial-interviews.shtml
https://www.techdirt.com/articles/20140522/10264627328/fbi-joins-20th-century-will-begin-using-recording-equipment-during-custodial-interviews.shtml
No, that's not a typo. The FBI has finally reached the 20th century when it comes to advancements in recording technology. No longer will records of custodial questionings be limited to agents' handwritten notes -- the sort of thing that's impossible to independently verify and prone to "spin" by the transcriptionist. (via emptywheel)

There was no news release or news conference to announce the radical shift. But a DOJ memorandum obtained by The Arizona Republic spells out the changes that will begin July 11.

"This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody," says the memo from James M. Cole, deputy attorney general, to all federal prosecutors and criminal chiefs.

"This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,'' such as in the questioning of witnesses.

As you can see, there's still a loophole for these agencies to exploit. They'll be "encouraged" to record non-custodial questioning, but there's no direct stipulation requiring it. On the plus side, this is a huge improvement over the previous method: handwritten notes taken by agents on a "302 form." Not only were the notes highly subjective, but they also tended to be destroyed as soon as possible. Others weren't even transcriptions of interviews, but were written after the fact using nothing more than an agent's power of recollection. This has obviously led to abuse, as well as to plain old carelessness.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence gathering, especially involving terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects like terrorist Osama bin Laden, TV star Martha Stewart and Oklahoma City bombing defendant Terry Nichols, along with thousands of defendants with no public exposure.

Of course, those who prefer the old, unaccountable way are still raising objections, despite the fact that recording custodial interviews has been common practice in less-cutting edge local law enforcement agencies for decades.

Nancy Savage, executive director at the Society of Former Special Agents of the FBI, said there's probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

The FBI's other rationale for pen-and-paper-only has been that jurors might be persuaded to acquit someone if they were made aware of tactics used by agents to secure a confession.

In 2006, the New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

This would seem to be a problem the FBI needs to solve, rather than just expect the public to go along with its your-word-against-ours policy. The fact that the DOJ's several agencies need to be pushed into providing something more verifiable than an agent's slanted recollection of an interview is a sad statement on the mentality of those employed by these agencies. For them, it's been a long, easy ride, where any abuse under the old system could be mitigated by the agencies' "fighting the good fight" excuse. After all, they're chasing down drug dealers and terrorists. Who are we to question their methods?

Well, we're the public and we've been expecting accountability from our government agencies for a long time. And they've been in no hurry to provide it. By "boldly" pushing the ATF, DEA and FBI into the last half of the 20th century, Deputy AG James Cole is finally nudging his charges in the right direction. To be sure, recording devices can be tampered with, misplaced or simply never activated, but it's still a huge step forward from the agencies' long-held preference for pen, paper and subjective portrayals.

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]]>already-in-progress...https://www.techdirt.com/comment_rss.php?sid=20140522/10264627328Fri, 18 Apr 2014 17:33:00 PDTFinally, Someone Acts Like An Adult: District Attorney Drops Charges Against Bullied Teen Who Recorded His TormentorsTim Cushinghttps://www.techdirt.com/articles/20140418/12201326960/finally-someone-acts-like-adult-district-attorney-drops-charges-against-bullied-teen-who-recorded-his-tormentors.shtml
https://www.techdirt.com/articles/20140418/12201326960/finally-someone-acts-like-adult-district-attorney-drops-charges-against-bullied-teen-who-recorded-his-tormentors.shtml
South Fayette School in Pennsylvania, along with a complicit criminal justice system, recently made headlines with its groundbreaking anti-bullying program, which apparently deters bullying by punishing bullied students.

Here's a short recap:

A bullied student used an iPad to make an audio recording of other students abusing him. He brought this to school administration who a) called in a police officer (after being advised by its legal team that this might be a violation of the state's wiretapping law) and b) deleted the recording.

The police officer, unable to actually bring a felony charge against the minor, settled for disorderly conduct. This charge brought him before a judge, who first stated her firm belief in the school's inability to do wrong before finding him guilty.

Throughout the entire debacle, not a single person involved even considered the possibility that the student had committed no crime or the fact that he had followed all of the school's prescribed steps for reporting bullying incidents. Instead, the desire to punish someone was obliged every step of the way.

Stanfield (the student) had announced that he and his attorney would file an appeal to that ruling but his fight may already be coming to an end. Today, Benswann.com has been told by Stanfield’s attorney that the District Attorney will allow the appeal to go forward but will no longer pursue this case.

More specifically, both the wiretapping charge (which was apparently still brought despite the involved officer's statement otherwise) and the disorderly conduct charge (which the judge found the student guilty of) were dropped.

A wiretapping charge against a South Fayette High School student who recorded two classmates bullying him has been dropped by the Allegheny County District Attorney's Office.

Mike Manko, a spokesman for District Attorney Stephen Zappala, said Judge Robert Gallo signed an order Thursday to withdraw the citation against 15-year-old Christian Stanfield.

"No one in our office who is authorized to give advice on wiretap issues or school conduct issues was ever contacted in this matter. We have made multiple attempts to contact the officer who wrote the citation and (the) results have been unsuccessful," Manko said in a written statement. "We do not believe this behavior rises to the level of a citation."

Odd that a police officer wouldn't talk to a district attorney. Unless, of course, a little bit of hindsight made him realize his every move fell between vindictive and buffoonish. Lt. Murka, who apparently considered both wiretapping and disorderly conduct to be appropriate "remedies" for a bullied student recording his tormentors, seems to have recused himself from the public eye. Manko, speaking for the DA, hits the heart of the issue -- one simple sentence that any of those involved could have deployed to call an end to this ridiculous situation before it ended up in front of a judge: "We do not believe this behavior rises to the level of a citation."

The South Fayette Township School District wishes to address recent reports in the local and national media concerning a student of the South Fayette Township School District. It is to be noted that certain information being disseminated by the media is inaccurate and/or incomplete.

Rather than clear up what exactly was "inaccurate and/or incomplete" about the reporting, it instead has chosen to hide behind "confidentiality."

The School District is legally precluded from commenting specifically in regard to these reports as the issue involves a confidential student matter.

Considering the story has been all over the news, it seems a bit weak to claim the matter is still "confidential." It would seem it could comment on any of the specifics already in the public domain. The story has gone nationwide, so it's disingenuous to pretend it's still a "confidential" matter.

While it's nice that the DA has dropped the charges and allowed the student to proceed through school without criminal charges hanging over his head, one wonders if this same outcome would have forthcoming without the attendant public outcry. Any adult can start acting like one with enough public shaming. But the application of a little common sense would have averted this incident completely.

A bit more troubling is one of the suggestions that escaped the lips of a local politician who showed up to the teen's "not a criminal" celebration.

State lawmaker Jesse White joined the rally, telling Stanfield he wants to name a law after him. He said it would close the loophole in the wiretapping law and allow victims of bullying to record it as proof for police and school officials.

His opportunistic heart's in the right place, but naming laws after people often indicates the new law is a bad one. This isn't an issue where a new law will fix things. This is an issue where no one in this chain of events showing the courage (and common sense) to stand up and ask why they were punishing a bullied kid for recording bullies.

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]]>and-to-think,-this-all-could-have-been-preventedhttps://www.techdirt.com/comment_rss.php?sid=20140418/12201326960Fri, 11 Apr 2014 17:31:00 PDTLos Angeles Cops Found To Be Tampering With Mandated Recording DevicesTim Cushinghttps://www.techdirt.com/articles/20140409/07412326854/los-angeles-cops-found-to-be-tampering-with-mandated-recording-devices.shtml
https://www.techdirt.com/articles/20140409/07412326854/los-angeles-cops-found-to-be-tampering-with-mandated-recording-devices.shtml
Who watches the watchers? Well, when you're the Los Angeles Police Department, you watch yourself. And when that kind of watching seems to be inhibiting, you just screw with the "watching" equipment. (via Ars Technica)

Los Angeles police officers tampered with voice recording equipment in dozens of patrol cars in an effort to avoid being monitored while on duty, according to records and interviews.

An inspection by Los Angeles Police Department investigators found about half of the estimated 80 cars in one South L.A. patrol division were missing antennas, which help capture what officers say in the field. The antennas in at least 10 more cars in nearby divisions had also been removed.

These antennas, linked to both in-car camera systems and officers' body mics, helped increase the recording range. Removing the antennas didn't completely prevent recordings, but it did make it harder to pick up officers' voices once they entered buildings or ventured further away from the receivers located in the vehicles. According to the manufacturer, the antenna boosts the effective range of the body-worn transmitters by roughly a third.

When you're watching yourself (something prompted by a decade-long DOJ investigation of the LAPD), you have this luxury. No cop's going to turn in another cop who removes an antenna or otherwise tampers with the department-imposed oversight measures. A whole lot of time elapsed between when the tampering was discovered and when it was finally brought to the attention of those charged with monitoring the monitoring.

Members of the Police Commission, which oversees the department, were not briefed about the problem until months later. In interviews with The Times, some commissioners said they were alarmed by the officers' attempts to conceal what occurred in the field, as well as the failure of department officials to come forward when the problem first came to light.

"On an issue like this, we need to be brought in right away," commission President Steve Soboroff said. "This equipment is for the protection of the public and of the officers. To have people who don't like the rules to take it upon themselves to do something like this is very troubling."

This is very troubling, and while it's nice of the Police Commission to admit that fact, this tampering points to the officers' underlying resentment of nearly any method of monitoring or control. Many police officers don't like being recorded in public by citizens, so it stands to reason they don't much care for being recorded by the department itself. Hence, antennas go missing.

Those who are supposed to be making sure the police officers aren't becoming a law unto themselves seem to have little interest in attacking the mindset that leads to this sort of behavior.

"We took the situation very seriously. But because the chances of determining who was responsible was so low we elected to … move on," [LAPD Commander Andrew] Smith said, adding that it cost the department about $1,500 to replace all the antennas.

Too hard, won't try. That's the standard being applied to the LAPD. Instead of making an effort, band aids are being applied. Officers are now supposed to sign off that the antennas are in place at the beginning and end of their shift. This leaves a gaping hole in coverage (otherwise known as the shift itself) should officers decide they'd rather not be recorded. This hole has received its own band aid.

To guard against officers removing the antennas during their shifts, Tingirides said he requires patrol supervisors to make unannounced checks on cars.

Great, but considering there are many more officers than supervisors, and considering the fact that it took months before the missing antennas were brought to the attention of the Police Commission, who really believes this is going to stop officers from disabling antennas during work hours?

Oh, Commander Smith believes.

Since the new protocols went into place, only one antenna has been found missing, Smith said.

Well, that's the sort of result you can expect from self-reporting. Sure, a few cops may get a verbal handslap from a supervisor if they happen to come across a missing antenna, but it's a safe bet these supervisors aren't any happier about their men and women being recorded while on duty. Because if they did care, it never would have gotten to the point where nearly half of the antennas in a single division went missing.

With these cops being charged with keeping department-issued antennas present and accounted for, some have opted to go a different route to avoid being recorded.

Last month, the department conducted a follow-up audit and found that dozens of the transmitters worn by officers in Southeast Division were missing or damaged.

This time there's actually an investigation being opened, months after the original antenna abuse was uncovered by an internal audit (but hidden from the Police Commission). Judging from what's happened previously, there's very little reason to believe this will lead to the ouster of bad cops who don't like accountability. A few scapegoats may be offered up to calm both the public and department oversight, but if a ten-year investigation by the DOJ failed to bring about the sort of systemic change needed, it's highly unlikely an internal investigation will result in anything better.

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]]>all-the-power,-zero-accountabilityhttps://www.techdirt.com/comment_rss.php?sid=20140409/07412326854Thu, 17 Oct 2013 13:57:56 PDTExperience Stop And Frisk Thanks To This POV VideoTimothy Geignerhttps://www.techdirt.com/articles/20131014/04345724861/experience-stop-frisk-thanks-to-this-pov-video.shtml
https://www.techdirt.com/articles/20131014/04345724861/experience-stop-frisk-thanks-to-this-pov-video.shtmlrecord public servants, particularly law enforcement officers, and the complete travesty known as stop and frisk. While that program is perhaps most infamous in New York, the basis for it is a court case, Terry v. Ohio, and that has been the groundwork for similar law enforcement policies throughout the country. Included in that is the city of Philadelphia, where we are able to see and hear firsthand a stop by two officers that all began when someone said hello to a stranger. Here's the entire video.

In case you can't view or would just like highlights, two men were stopped by police, according to the officers, because they said hello to a stranger and people just don't do that. So now we're outlawing being polite? Outstanding. It gets worse from there.

"I didn't accuse you of anything, can you hear? I said we could have got a call that somebody wearing the clothes that you're wearing just robbed someone, that's why we stopped you, so is that wrong of us?"

Well, gee, officer, in that completely hypothetical that you aren't confirming actually happened, that would not be wrong. But that isn't what was said initially. Instead, the stop occurred because of so-called suspicious activity that consisted of someone saying hello to another person. A stop due to a BOLO (be on the lookout) probably wouldn't have started with questioning suspects about saying hello.

"You're under investigation right now"

"Investigation of what? I was walking."

"That's not what I saw"

"I was walking."

"You're gonna be in violation if you keep running your mouth when I split your wig open."

I'm pretty sure we have a right to remain silent, not a requirement to under penalty of a split wig, whatever the hell that is. Further, as the video continues with threats for taking the men in for "running" their mouth illustrates wonderfully how far outside the bounds of serving and protecting these two esteemed officers went.

If you can stomach the video all the way through, you end up hearing the officers admit these two gentlemen did nothing wrong and would be let go, offered up via an extremely patronizing admission that they're "good guys." Without the right to record, not only would the abhorrent actions of the officers be subject to review, but those more privileged in life like myself might not understand that complete humiliation and unfairness involved in randomly stopping people without any reasonable suspicion wrong-doing. Stop and frisk and its cousin programs need to go the way of the dodo now.

A Pennsylvania cop responding to a report of an accident refused to talk to the citizen unless his friend turned off the camera.

The citizen insisted on his friend recording, so Lancaster police officer Philip Bernot walked back to his car and drove off, refusing to take the report.

The citizen said he called the desk sergeant to complain, but was told it is a departmental policy not to be recorded.

Is it actually against departmental policy for Lancaster police officers to be recorded while performing their public duties (in public)? Well, that all depends on how you translate Pennsylvania's wiretap act, which aligns closely with the (formerly) onerous statute in place in Illinois. According to this 2007 Lancaster PD policy manual update, Pennsylvania citizens have the right to record video but not audio, unless both parties consent.

It starts out promisingly.

It is the policy of the Manheim Township Police Department to recognize the legal standing of members of the public to make video/audio recordings of police officers and civilian employees who are carrying out their official police duties in an area open to the public, and by citizens who have a legal right to be in an area where police are operating, such as a person’s home or business. However, this right does not prevent officers from taking measures to ensure that such activity and recording does not interfere or impeded with the officer’s law enforcement and public safety purpose.

The right to record audio and video seems to be guaranteed, provided there's no interference of police business (a huge gray area), and would seem to cover the contentious recording that caused an officer to walk off the job, as it were. But later in the same statement, this guarantee is undercut by a reference to Pennsylvania's wiretap act, providing every Lancaster police officer with a very convenient out.

The courts have made a distinction between simply videotaping an officer and videotaping with audio. When a person is out in public, he or she is voluntarily presenting their visage to the public and therefore can have no expectation that someone may photograph that person’s actions. However, when a person engages in discourse with another, as provided in the Wiretapping and Electronic Surveillance Control Act, 18 PA C.S.A. 5701, et seq. (“Pennsylvania Wiretap Act”), that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to by the person speaking.

In order to ensure the state's (outdated) wiretap act isn't violated, those involved must jump through the following hoops.

If the officer would normally have an expectation of privacy and the officer observes the person being addressed audio taping or videotaping with audio, the officer may inform such person that he or she does not consent to the audio portion of the taping and request that the audio be shut off.

Following up on a reported accident on a public street would seemingly eliminate any "expectation of privacy," even for audio. Officer Philip Bernot felt otherwise, and chose to read the policy as being heavily reliant on this phrase in the preceding paragraph:

However, when a person engages in discourse with another… that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to…

These two parts of the policy are at odds with each other and, indeed, with the opening paragraph that states the department recognizes the public's right to record video and audio of public servants performing their duties in public -- all of which Officer Bernot was doing, right up until he decided he wouldn't.

Pennsylvania's wiretap law provides plenty of exceptions for law enforcement and certain citizens to record audio with only the "consent" of the recorder (telemarketers, people discussing work with contractors) but it provides nothing specific regarding the general public recording public citizens. On the bright side, the wiretap law is set to expire at the end of this year (it was last amended in 2002 -- problematic enough given the exponential increase in citizens who carry cameras everywhere they carry their phones). Unfortunately, it looks as though renewing it completely intact is an option ("...unless extended by statute").

But is the Lancaster PD's contradictory reading of the wiretap statute accurate? Does it actually mean the public has no right to record audio of police officers without their consent, while completely free to record video and take photos? The Reporter's Committee for Freedom of the Press has a rundown on every state's applicable recording statutes and it comes to this conclusion regarding Pennsylvania's.

It is unlawful to record an “oral communication,” which is defined as “any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation” without first obtaining the consent of all parties engaged in the conversation. 18 Pa. Cons. Stat. Ann. § 5702. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

If a journalist is allowed to record "oral communications" in public without consent, it stands to reason citizens should be allowed to do the same. Lancaster PD may be deterring recordings by providing a confusing mess of a policy, but its interpretation of the wiretap law is flawed. The PD may have its own departmental policy, but it's superseded by state law governing recordings.

The constitutionality of this law won't be stress tested until there are multiple incidences of abuse, unfortunately. In Illinois, it took several high-profile cases of police and prosecutorial abuse before it reached the critical level needed to prompt a ruling from the Supreme Court. A single case, properly routed, could have the same effect, but there's an equal likelihood the courts would view it as a departmental anomaly rather than a flaw with the underlying law. On the other hand, Illinois' nearly-identical wiretap law has been struck down, meaning there's some sort of comparative ruling, even if there's not actual precedence.

The Lancaster PD is misusing the wiretap statute, one that the original legislators never meant to be utilized as a shield against public accountability. Officer Bernot's refusal to perform his duty, whether "justified" by a bad statute or not, was completely immature.

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]]>those enforcing the law are the best at twisting the lawhttps://www.techdirt.com/comment_rss.php?sid=20131009/10030424811Fri, 21 Jun 2013 17:28:00 PDTHow Much Would It Cost To Store All US Phone Calls Made In A Year?Glyn Moodyhttps://www.techdirt.com/articles/20130621/03390823552/how-much-would-it-cost-to-store-all-us-phone-calls-made-year.shtml
https://www.techdirt.com/articles/20130621/03390823552/how-much-would-it-cost-to-store-all-us-phone-calls-made-year.shtml
An early criticism of Snowden's leak about NSA spying activity was that the $20 million annual cost for PRISM -- whatever that turns out to be -- was simply too low to be credible. One person who knows more about storage costs than practically anyone -- well, outside the NSA, at least -- is Brewster Kahle, who set up the Internet Archive, essentially a backup for the entire Web plus a wonderfully rich store of many other materials. He's carried out a fascinating back-of-the envelope calculation of how much it would cost annually to record every phone call made in the US and store it in the cloud:

These estimates show only $27M in capital cost, and $2M in electricity and take less than 5,000 square feet of space to store and process all US phonecalls made in a year. The NSA seems to be spending $1.7 billion on a 100k square foot datacenter that could easily handle this and much much more. Therefore, money and technology would not hold back such a project -- it would be held back if someone did not have the opportunity or will.

Kahle has made the calculation available as a shared document (on Google, appropriately enough), so you can inspect his assumptions there and play around with the numbers. It's also worth reading through the comments to his short post, since they make some interesting points. However, even if the numbers are off by a factor or two, there's no doubt about the feasibility of recording all US phone calls.

And that's for sound files, which take up quite a lot of space. Text-based information pulled in from emails, Web pages and chat logs could be stored more compactly. That would make the routine recording of vast swathes of what those in the US -- and outside it -- do online not just plausible, but so cheap in comparison to the NSA's presumably large budget, that the latter might feel it would be crazy not to do so as a matter of course.

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]]>cheaper-than-you-thinkhttps://www.techdirt.com/comment_rss.php?sid=20130621/03390823552Mon, 20 May 2013 08:53:09 PDTYour Word Against Ours: How The FBI's 'No Electronic Recording' Policy Rigs The Game... And Destroys Its CredibilityTim Cushinghttps://www.techdirt.com/articles/20130516/18383623114/your-word-against-ours-how-fbis-no-electronic-recording-policy-rigs-game-destroys-its-credibility.shtml
https://www.techdirt.com/articles/20130516/18383623114/your-word-against-ours-how-fbis-no-electronic-recording-policy-rigs-game-destroys-its-credibility.shtml
Considering the FBI's unseemly interest in recording phone calls and inserting itself into all sorts of electronic conversations (all without asking permission first), it's incredibly strange that it refuses to use one of the most basic electronic devices available: a voice recorder. In fact, as Harvey Silverglate's op-ed for the Boston Globe points out, it's forbidden to use any sort of recording device when interviewing suspects.

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.

Without a recording to compare the transcript to, we are expected to trust the FBI's version of the interrogation. If we can't trust it, we are left to draw one of the following conclusions.

1. The transcript is completely false. 2. The transcript is heavily editorialized. 3. The transcript interprets certain statements, but is otherwise accurate. 4. The transcript is completely accurate.

Of all of these choices, number 4 seem least likely. In fact, one wonders why the FBI bothers interviewing anyone when it could simply put two agents in a room and allow them to bang out a confession on behalf of the accused.

If a suspect claims the transcription is erroneous, it's his word against theirs. His words, of course, disappeared into the ether as soon as they were spoken. The FBI's version lives on, printed on paper.

We don't need to ask "why" this is a problem. There are rhetorical questions and then there are stupid questions, the sort helpful teachers and guidance counselors continue to pretend don't exist. A better question is, "Why hasn't this been changed?" Silverglate notes this policy is an updated version of a 1990's policy, crafted in 2006, long long long long after recording devices were ubiquitous. The excuse that this policy was "logistically necessary" because of technological limitations was ridiculous in 1990, much less 16 years later.

This is a problem. More specifically, this is Robel Phillipos' problem.

Phillipos is a 19-year-old Cambridge resident, former UMass Dartmouth student, and friend of alleged Marathon bomber Dzhokhar Tsarnaev. He faces charges of making materially false statements during a series of interviews with FBI agents. If convicted, he could get up to eight years in federal prison and a $250,000 fine.

Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?

A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?

Notated in 302: D cannot recall when he first went to bomb website. Went "constantly."

Slick, isn't it? And when someone points out a misquote, the accusation is turned on them just as easily. "Are you lying now or were you lying earlier?"

This is nasty business but it gets even nastier. Beyond the hilarious claim that tech simply hasn't advanced enough since 1990 to allow reliable voice recording, there's a much darker rationale guiding this ridiculous (and dangerous) policy.

The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

Sometimes the "reasonable jury" would be right -- the statement has been "coercively or misleadingly obtained." Other times, it may not be as clear-cut. But in a day and age where recording interviews and interrogations is the expectation, the FBI continues to play by its own (convenient) rules. And if the person being interrogated doesn't like it, he can expect additional charges to brought. This puts the alleged criminal in the unenviable position of having "anything he says" twisted, rewritten and heavily paraphrased before being used against him.

Silverglate cautions to withhold judgement on Phillipos until all the facts are in. But as long as the FBI continues to use this "recording" technique, don't grant its statements any credibility. They have none.

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]]>everybody knows the dice are loadedhttps://www.techdirt.com/comment_rss.php?sid=20130516/18383623114Wed, 3 Apr 2013 08:54:21 PDTTime Warner Cable: We Can Record You, But You Can't Record UsMike Masnickhttps://www.techdirt.com/articles/20130402/18092222551/time-warner-cable-we-can-record-you-you-cant-record-us.shtml
https://www.techdirt.com/articles/20130402/18092222551/time-warner-cable-we-can-record-you-you-cant-record-us.shtmlspoof on customer service from Time Warner Cable by the gripe site TWCCustomerService.com, and I see that they've been busy with their next video as well, in which they call Time Warner Cable's customer service center and tell the representative who answers that they are going to "record the call for quality assurance." Hilarity ensues.

Here's a snippet.

Caller: First off, I just want to let you know that I'm recording the call for quality assurance...

Customer Service Rep: Unfortunately, I'm actually not authorizing you to do so, sir.

Caller: You're not authorized to do what?

Customer Service Rep: I'm not authorizing the recording, sir.

Caller: Oh, well you guys are recording the phone call on your end. Why can't I record it on my end?

Customer Service Rep: (long pause) Because it's the company sir.

Later on, the CSR admits that, yes, TWC is recording the call, and the caller requests the recording (guess how that goes?). The CSR continues to insist he's uncomfortable being recorded and is not giving any consent, so the caller more or less says the same thing and asks the CSR to turn off the recording on their end. And so it goes.

As a random aside, I'll just bring up the idiocy of places (including my home state of California) that have two party consent recording laws. If you are a party to the call, you should be able to record it without getting the consent of all participants.

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]]>oh-look-at-thathttps://www.techdirt.com/comment_rss.php?sid=20130402/18092222551Tue, 12 Mar 2013 15:01:42 PDTRecording Of Bradley Manning's Statement In Court LeakedMike Masnickhttps://www.techdirt.com/articles/20130312/13325322300/recording-bradley-mannings-statement-court-leaked.shtml
https://www.techdirt.com/articles/20130312/13325322300/recording-bradley-mannings-statement-court-leaked.shtmlsecretive the court martial process has been for Bradley Manning. Part of that is that there is no recording allowed in the courtroom, and thus there was no recording or official transcript of Manning's long statement to the court, even though some reporters tried to piece together a statement from their notes. However, it appears that someone snuck a recorder into the room, and recorded Manning's statement, which has now been leaked by the Freedom of the Press Foundation. As they note, this is actually the first time that the public has been able to hear Bradley Manning speak. As the FPF notes:

A group of journalists, represented by the Center for Constitutional Rights (CCR), has been engaged in a legal battle to force the court to be more open. While the government has belatedly released a small portion of documents related to the case, many of the most important orders have been withheld—such as the orders relating to the speedy trial proceedings or the order related to Manning’s prolonged solitary confinement.

Michael Ratner, president emeritus of CCR, called the government "utterly unresponsive to what is a core First Amendment principle." Ratner noted this is a public trial, the information being presented is not classified, and that contemporaneous access to information about the trial is necessary to understanding the proceedings. Nonetheless, the lawsuit has been tied up in the appeals court for months.

The US government and its military has carefully ensured that people hear about Manning from the government, but do not hear from Manning himself. It is way past time for Manning's voice to be heard.

Greenwald has also broken down the statement and highlighted some key points. For example, he notes that many of Manning's critics argued that Manning released information willy nilly with no concern for what was in the documents, and whether releasing them would cause harm. From the transcript, we learn that this is simply untrue. He did review the content, and came to the conclusion that the documents he was releasing needed to be released for the benefit of the US, and not to harm the US. He admitted they might be embarrassing, but that's very different from harmful.

Up to this point, during the deployment, I had issues I struggled with and difficulty at work. Of the documents release, the cables were the only one I was not absolutely certain couldn't harm the United States. I conducted research on the cables published on the Net Centric Diplomacy, as well as how Department of State cables worked in general.

"In particular, I wanted to know how each cable was published on SIRPnet via the Net Centric Diplomacy. As part of my open source research, I found a document published by the Department of State on its official website.

"The document provided guidance on caption markings for individual cables and handling instructions for their distribution. I quickly learned the caption markings clearly detailed the sensitivity of the Department of State cables. For example, NODIS or No Distribution was used for messages at the highest sensitivity and were only distributed to the authorized recipients.

"The SIPDIS or SIPRnet distribution caption was applied only to recording of other information messages that were deemed appropriate for a release for a wide number of individuals. According to the Department of State guidance for a cable to have the SIPDIS caption, it could not include other captions that were intended to limit distribution.

"The SIPDIS caption was only for information that could only be shared with anyone with access to SIPRnet. I was aware that thousands of military personnel, DoD, Department of State, and other civilian agencies had easy access to the tables. The fact that the SIPDIS caption was only for wide distribution made sense to me, given that the vast majority of the Net Centric Diplomacy Cables were not classified.

"The more I read the cables, the more I came to the conclusion that this was the type of information that should become public. I once read and used a quote on open diplomacy written after the First World War and how the world would be a better place if states would avoid making secret pacts and deals with and against each other.

"I thought these cables were a prime example of a need for a more open diplomacy. Given all of the Department of State cables that I read, the fact that most of the cables were unclassified, and that all the cables have a SIPDIS caption.

"I believe that the public release of these cables would not damage the United States, however, I did believe that the cables might be embarrassing, since they represented very honest opinions and statements behind the backs of other nations and organizations."

It really is a travesty that the US government has kept all of this so closed, and has refused to release a recording or a transcript. Are they really so afraid that the public might hear Bradley Manning explain himself?

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]]>in-his-own-wordshttps://www.techdirt.com/comment_rss.php?sid=20130312/13325322300Wed, 6 Feb 2013 08:26:00 PSTNJ State Trooper Feels The Best Part About The Required Dashcam Is The OFF ButtonTim Cushinghttps://www.techdirt.com/articles/20121124/16175121132/nj-state-trooper-feels-best-part-about-required-dashcam-is-off-button.shtml
https://www.techdirt.com/articles/20121124/16175121132/nj-state-trooper-feels-best-part-about-required-dashcam-is-off-button.shtmlplenty of stories here dealing with law enforcement's general displeasure with having their actions captured on camera by citizens (with one rare, exemplary exception). An odd stance to take, considering most law enforcement officers are recording a majority of their interactions with the public -- except when it's more convenient not to. Scott Greenfield runs down the details of another case where a state trooper's camera was used selectively to "throw out" incriminating evidence.

The virtue of having a video of police encounters has been proven over and over, whether because it belies the allegations of a crime or proves them. But then, sometimes the guy with his finger on the dashcam's "on" button may not want evidence of what is about to happen. Via NJ.com:

Allen Bass, 50, sued Trooper Gerald Dellagicoma and others in 2009, claiming they punched and kicked him multiple times, causing him to urinate on himself, after he complied with their commands to get off his bicycle at Ellis Avenue and Clinton Avenue in Irvington a year earlier.

[Bass] was riding his bike July 10, 2008, in Irvington when Dellagicoma and other troopers who were on patrol in the area got out of their patrol cars and ordered him to stop. Bass claimed he laid on the ground chest-down and spread his arms and legs.

Troopers allegedly then punched and kicked him before arresting him. Bass was charged with drug possession, resisting arrest by flight and resisting arrest by force, court documents show.

Ultimately, the charges against Bass were dropped because the officers failed to show up in court. That, in and of itself, doesn't necessarily indicate any sort of irresponsibility or maliciousness on behalf of the troopers involved. But one of State Trooper Dellagicoma's actions during the incident certainly does.

Court documents show Dellagicoma, who joined the force in 2001, failed to activate his patrol car camera and was suspended without pay for 30 days, but only served 15 days of that suspension.

And this wasn't an isolated incident.

Records show Dellagicoma was reprimanded several times prior to the incident for the same infraction.

In another federal civil lawsuit, Salah Williams of Newark, an African-American, claims he was a victim of racial profiling, excessive force and malicious prosecution when Dellagicoma allegedly assaulted, maced, arrested and charged him for no reason while walking near his store in the city... Similar to the Bass case, Dellagicoma also failed to activate his patrol car camera and appear in court, resulting in the dismissal of the charges against Williams.

This is a big problem. As Greenfield points out, New Jersey State Troopers are required to record every interaction with the public.

What makes this special is that in New Jersey, there is a requirement that arose from the racial profiling scandal that rocked the Turnpike, that all encounters with State Troopers be videotaped. The state was kind enough to put cameras in cruisers. Never again would a trooper be falsely accused of profiling a driver just because he was black. (This is known as the "black plus" theory of profiling.)

The bigger problem is the handling of those who choose to grant themselves exceptions to this requirement. The offense is treated as a minor infraction, punishable by a written reprimand or a short suspension -- neither of which are severe enough to make troopers like Dellagicoma reconsider hitting the OFF switch when it suits them.

The only way an incentive system works is to make the cost of noncompliance greater than the cost of compliance. Apparently, a written reprimand and a few days suspension doesn't cut it. And when it happens repeatedly, it is clearly failing to serve as a deterrent. That's not good enough.

The efficacy of video depends on its actually being used, in every instance and including the entire encounter. Anything less reduces it to a game, where the police make the rules, and the rules will not be good for the other side.

Citizens aren't going to be on hand to record all of these interactions, although each passing day provides more and more documentation captured by the public, many of whom put themselves in harm's way to secure this footage. And it's a sign that the system is pretty screwed up if "recording the police" often equates to "putting yourself in harm's way."

This single incident cost New Jersey taxpayers $50,000 and did more damage to the already-questionable reputation of NJ state troopers. All it cost Dellagicoma was a single paycheck, leaving him free to "fail to activate" his camera again and again as the situation suits him.

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]]>welcome-to-new-jersey,-here's-your-complimentary-beatinghttps://www.techdirt.com/comment_rss.php?sid=20121124/16175121132Thu, 10 Jan 2013 09:17:55 PSTPolice Use HIPAA To Justify Charging Citizen For Recording ThemTimothy Geignerhttps://www.techdirt.com/articles/20130109/10540821619/ramsey-county-police-use-hipaa-to-justify-charging-citizen-recording-them.shtml
https://www.techdirt.com/articles/20130109/10540821619/ramsey-county-police-use-hipaa-to-justify-charging-citizen-recording-them.shtmlcase after case after case of citizens having their property taken away or being charged with trumped up crimes all because they pointed a recording device at the police. Hell, some states have tried to enact unconstitutional laws to back up their ill-conceived and unwarranted positions.

All that being said, you just have to hand it to a police force up in Minnesota for the sheer cajones it took to do what they did. It started as other stories have, with a citizen, Andrew Henderson, recording police as they frisked a bloodied man before he was loaded into an ambulance and then having an officer take his recording device away.

The deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said.

"We'll just take this for evidence," Muellner said. Their voices were recorded on Henderson's cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. "If I end up on YouTube, I'm gonna be upset."

We've seen this kind of thing before, of course. Police use the excuse of evidence collecting to take away recording devices, which is really the only thing they're interested in. It's wrong. We get that. Usually some kind of internal review of the incident is triggered, asses are officially covered, and then the recording device is returned, sometimes after having been wiped. It's a bad enough story as it stands.

And that scenario is almost exactly what happened here, as the spokesman for Ramsey County acknowledged in a quote that citizens have the right to record police. But everyday abusive practices aren't enough for Ramsey County officers, apparently. The only thing that will satisfy them appears to be a new level of bullshit hitherto unseen, because a week later, when Henderson went to retrieve the camera, the police charged him with disorderly conduct and obstruction, with the citation noting that this was due to a "Data privacy HIPAA violation." In case you aren't clear on this, in the blogging industry, we refer to this as a massive amount of bullshit (piles and piles of it).

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School. The rule deals with how health care providers handle consumers' health information.

"There's nothing in HIPAA that prevents someone who's not subject to HIPAA from taking photographs on the public streets," Granick said. "HIPAA has absolutely nothing to say about that."

The kicker? The deputy who had taken the camera for "evidence" purposes erased all the footage. The exchange in which she took that camera was audio recorded by Henderson separately on his cell phone, a recording which he still has. I would suggest that if the police do not immediately rescind their trumped up charges against him, Henderson should insist that we take the deputy at her word, assume she collected the camera and its footage as evidence, and then we can all begin discussing how much prison time the deputy should be doing for destruction of evidence and obstruction of justice.

That's no more crazy than anything the police have done in this story.

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]]>well that's just bullshithttps://www.techdirt.com/comment_rss.php?sid=20130109/10540821619Tue, 27 Nov 2012 20:02:00 PSTSupreme Court Rejects Appeal Over Law Banning Recording The PoliceTimothy Geignerhttps://www.techdirt.com/articles/20121126/14083621150/supreme-court-rejects-appeal-over-law-banning-recording-police.shtml
https://www.techdirt.com/articles/20121126/14083621150/supreme-court-rejects-appeal-over-law-banning-recording-police.shtml75 years in jail for five counts at up to 15 years each, until the 7th Circuit appeals court ruled that the law could not be enforced, because it very likely violated the First Amendment. Specifically, they sent it back to the lower court to rule on whether the law did, in fact, violate the First Amendment, along with fairly strong guidance that the lower court should probably toss out the law on those grounds. However, before the district court could review, the appeals court ruling was appealed to the Supreme Court.

The Supreme Court has rejected an appeal from the Cook County state's attorney to allow enforcement of a law prohibiting people from recording police officers on the job. The justices on Monday left in place a lower court ruling that found that the state's anti-eavesdropping law violates free speech rights when used against people who tape law enforcement officers.

The ACLU had brought a suit to block the prosecution of their staff recording police in public spaces, a main focus of the organization. They also see the refusal by the Supreme Court to hear the case as a major win for the rights of citizens to keep law enforcement from abusing their power.

Harvey Grossman, legal director of the ACLU of Illinois, said the organization was "pleased that the Supreme Court has refused to take this appeal. . .The ACLU of Illinois continues to believe that in order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents – especially the police. The advent and widespread accessibility of new technologies make the recording and dissemination of pictures and sound inexpensive, efficient and easy to accomplish."

As recording devices in public become more and more ubiquitous, hopefully law enforcement will cease to shy away from such public scrutiny. After all, in the long run, the ability for the public to check abuses by the authorities will only make those authorities better.

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]]>got-one-righthttps://www.techdirt.com/comment_rss.php?sid=20121126/14083621150Thu, 27 Sep 2012 02:55:03 PDTMichael Robertson Continues To Tempt Copyright Fate With UberTalk: Recordable Radio Directory OnlineMike Masnickhttps://www.techdirt.com/articles/20120926/16145720520/michael-robertson-continues-to-tempt-copyright-fate-with-ubertalk-recordable-radio-directory-online.shtml
https://www.techdirt.com/articles/20120926/16145720520/michael-robertson-continues-to-tempt-copyright-fate-with-ubertalk-recordable-radio-directory-online.shtmltechnology allows, even if the law hasn't quite caught up yet. As such, he frequently finds himself on the wrong end of legal actions from legacy players who hate being disrupted. Last year, we wrote about his DAR.fm effort, which basically is an online DVR for broadcast radio. He's now taking that even further, with the launch of UberTalk, an online directory of what's on radio right now (and in the future). You know your basic online (or on screen) TV guides? Yeah, UberTalk is that, but for radio -- with the convenient ability to play... or to record and time shift anything you'd like.

Given the state of radio today, this seems really, really useful. But, is it legal? We've already seen legal threats pointed at DAR.fm, and I can't imagine that all the broadcast folks will like this either -- even though it only increases the value of their product by making it more easy to find and useful.

What we're seeing, yet again, is how the technology allows for something really useful that adds value to both the content and for the users. And yet... copyright law makes it very, very difficult to pull off. Why? Because copyright law is purposely built around keeping the status quo, not about encouraging innovation. So you have yet another clear case where it seems like copyright law is holding back "the progress" rather than helping to speed it along.

The DC police say that they're "looking into" the report. It would be nice to see them follow up on their original policy statement with a clear rebuke of the officers involved.

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]]>but-of-coursehttps://www.techdirt.com/comment_rss.php?sid=20120726/12443919846Fri, 22 Jun 2012 10:14:00 PDTRIAA's New War: Shutting Down The Equivalent Of Internet VCRsMike Masnickhttps://www.techdirt.com/articles/20120622/08220419435/riaas-new-war-shutting-down-equivalent-internet-vcrs.shtml
https://www.techdirt.com/articles/20120622/08220419435/riaas-new-war-shutting-down-equivalent-internet-vcrs.shtmlreminded them of this promise after the RIAA went after XM Radio's device to record broadcasts. It appears that the RIAA has no problem continuing to go against its word. Its latest move is to send a letter to CNET, asking it to remove tools from Download.com that can be used to record videos from YouTube. Of course, there a tons of legitimate uses for such tools. Just as you can legally record shows off of TV (thank you Supreme Court), you should be able to record stuff on YouTube (related: shame on Google for blocking such tools as well).

Of course, from the parts of the RIAA's request that have been made public by Greg Sandoval at CNET, it sounds like the RIAA isn't directly making a legal threat (which would be tough, given CNET's role as a fourth party service provider for third party tools which might be used to infringe), but rather appealing to its parent company, CBS, arguing that because such tools and their substantial non-infringing uses might also be used to record CBS content (again, just like the VCR), that they should want to put an end to them.. Thankfully, it sounds like CNET has no interest in complying.

However, given the RIAA's promises during the Grokster case that it had no interest in blocking such technologies, it seems that, once again, the RIAA has been shown as liars who have no compunction about blocking perfectly legal technologies, just because they haven't figured out how to adapt to modern times.

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]]>the-virtual-boston-stranglerhttps://www.techdirt.com/comment_rss.php?sid=20120622/08220419435Fri, 2 Mar 2012 17:46:21 PSTYet Another Court Says Illinois 'Eavesdropping' Law That Criminalizes Recording Police Is UnconstitutionalMike Masnickhttps://www.techdirt.com/articles/20120302/12363517959/yet-another-court-says-illinois-eavesdropping-law-that-criminalizes-recording-police-is-unconstitutional.shtml
https://www.techdirt.com/articles/20120302/12363517959/yet-another-court-says-illinois-eavesdropping-law-that-criminalizes-recording-police-is-unconstitutional.shtmlrecord police, even while they're on duty, without their knowledge. This seems crazy to us, and it appears the courts are agreeing. Last fall, we noted that a state court had ruled the law was unconstitutional, and now (as pointed out by reader John Katos) another local court has done the same.

Judge Stanley Sacks, who is assigned to the Criminal Courts Building, found the eavesdropping law unconstitutional because it potentially criminalizes “wholly innocent conduct.”

Last we'd heard, Illinois prosecutors were appealing the first ruling, and I imagine they won't be too happy about this ruling either. But, at some point, it seems they have to recognize the ridiculousness of making it a crime to record police on the job.

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]]>free-speechhttps://www.techdirt.com/comment_rss.php?sid=20120302/12363517959Thu, 6 Oct 2011 16:13:51 PDTDAR.fm Receives Cease & Desist For Letting People Record Radio OnlineMike Masnickhttps://www.techdirt.com/articles/20111006/01221816229/darfm-receives-cease-desist-letting-people-record-radio-online.shtml
https://www.techdirt.com/articles/20111006/01221816229/darfm-receives-cease-desist-letting-people-record-radio-online.shtmlDAR.fm, noting that he was tempting copyright lawsuit fate again. DAR.fm is basically an online DVR for radio. It lets you record and listen to all sorts of online radio programming. As we noted at the time, it seemed inevitable that someone would challenge the legality of this -- but it seemed like the Second Circuit's ruling in the Cablevision online DVR case at least presented him with a case that supported his general view that such time shifting of radio, even if done remotely, is legal.

Either way, it appears he's received his first cease & desist, which comes from Univision and is embedded below. Robertson is making his case against Univision publicly, first pointing out that it seems to be reacting the same way the TV industry did to TiVo and ReplayTV:

Ten years ago, ReplayTV and TiVo burst onto the scene introducing the digital video recorder (DVR) to the world. Immediately some predicted the end of the TV business because people could fast-forward through commercials. Lawsuits put ReplayTV out of business (in spite of superior technology). Eventually cooler heads prevailed and the technology thrived to the point where nearly half of American households have a DVR. Consumers could, for the first time, enjoy their favorite programming at a time convenient for them. Thanks in large part to the DVR, TV viewing is up 40% over the last decade which is especially notable given that competition for consumer attention has stiffened due to internet browsing, Skype, video games, and social networking.

You would think that with this backdrop radio companies would welcome DVR technology into their own industry and many probably will but at least one doesn't - Univision.

He goes on to make the case that such time shifting is quite common and legal. In fact, he points out that Univision is more known for its TV stations, and are they really arguing that a DVR is legal for video, but a DAR is not for audio?

While recording broadcasted material may be new to radio, it's not new to society and surely Univision must know that. Nearly 50% of US households have a DVR today. Univision's TV business dwarfs its radio business. It's likely that millions of people are making recordings of Univision TV shows as I write this. And some may be blinking their eyes or listening from another room transforming these video recordings into audio recordings. Similarly, internet users can capture online articles for later viewing using popular services like Readitlater and Instapaper and some may be doing that from the Univision.com website. If it's legal in those channels it only makes sense that the same functionality is legal for radio.

In their demand letter Univision says that no court has addressed the legality of "precisely" the kind of service offered by DAR.fm. Well of course not the PRECISE service, but darn close. The case is called Cartoon Network v Cablevision. Cablevision wanted to offer a remote DVR service and media companies sued them alleging copyright infringement. (You can read assessment of this critically important case here.) Courts eventually ruled that a centralized recording service did not require a license from media companies and was not a copyright infringement. Cablevision now commercially offers this service under the name DVR Plus. Other companies have begun offering online recording services.

It will come as little surprise that I think DAR.fm should be legal, but the courts can be funny about this kind of thing. Even though, functionally, it may seem identical to a DVR, having it actually go to court is a crapshoot. Still, if Univision is smart, it'll back down on this. Making their stations and programs more difficult to listen to hardly seems like a compelling business strategy.

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]]>how-dare-theyhttps://www.techdirt.com/comment_rss.php?sid=20111006/01221816229Fri, 30 Sep 2011 09:32:47 PDTGuy Arrested, Threatened With 15 Years For Recording Traffic Stop In IllinoisMike Masnickhttps://www.techdirt.com/articles/20110929/10325216136/guy-arrested-threatened-with-15-years-recording-traffic-stop-illinois.shtml
https://www.techdirt.com/articles/20110929/10325216136/guy-arrested-threatened-with-15-years-recording-traffic-stop-illinois.shtmlappeal the Michael Allison case, in which the state wants to put Allison in jail for 75 years because he recorded an interaction with the police, it's worth pointing out that this is not the only such case in Illinois. A few people have sent over this ABC report about another guy, Louis Frobe, who was arrested and told he was facing 15 years in jail for daring to turn on his Flip cam during a traffic stop. You can see the video of the traffic stop in the news report below. Yes, note the irony: the whole thing was recorded (without Frobe's permission) by the police car camera, but the second the officer sees the Flip cam, he tells Frobe he's committed a felony and arrests him:

The key part:

Frobe calls it the worst experience of his life. He was on his way to a late evening movie on an August night last year when he was stopped for speeding in far north suburban Lindenhurst. He didn't believe he was in a 35-mile-an-hour zone, and he figured if he was going to get ticket he wanted to be able to document his challenge with video evidence, so he got out his flip camera, which he was not very adept at using.

At one point he held it out the window trying to record where he was. When the officer, being recorded on his squad dash cam, walked back to Frobe's car, the officer saw Frobe's camera.

Officer: "That recording? Frobe : "Yes, Yes, I've been... Officer: "Was it recording all of our conversation? Frobe: "Yes. Officer: "Guess what? You were eavesdropping on our conversation. I did not give you permission to do so. Step out of the vehicle."

Louis Frobe was then cuffed and arrested for felony eavesdropping.

Yes, eavesdropping. On himself.

In this case, prosecutors eventually dropped the charges, but Frobe turned around and sued them for the arrest in the first place. The Illinois Attorney General -- who still insists there's no First Amendment right to record the police -- has said Frobe's case should be dismissed since he has no standing. Of course, this is a nearly identical fact pattern to the Glik case in Massachusetts, where the court not only allowed Glik to sue but found 1st and 4th Amendment problems with the arrest. These are different circuits, so the ruling in Massachusetts doesn't directly act as precedent for Illinois, but it certainly can be cited and discussed.